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[2010] ZAWCHC 552
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Kloof Investment 2004 CC v Garry Isaacs t/a Build-O-Rama Builders Merchants (23305/2010) [2010] ZAWCHC 552 (12 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No. 23305/2010
In
the matter between:
KLOOF
INVESTMENT 2004 CC
…........................................................................................
Applicant
And
GARY
ISAACS
t/a
BUILD-O-RAMA BUILDERS MERCHANTS
…............................................................
Respondent
RESPONSE
TO REQUEST FOR REASONS FOR ORDER
CLOETE,
AJ
[1]
On 28 October 2010 I made an order in terms whereof I directed that
the matter was to be dealt with as one of urgency.
[2]
On 19 November 2010 the respondent delivered a Notice in terms of
Rule 49(1 )(c) requesting me to furnish reasons for the order
(in
respect of urgency only).
[3]
Rule 49(1 )(c) provides that:
When
in giving an order the court declares that the reasons for the order
will be furnished to any one of the parties on application,
such
application such shall be delivered within ten days after the date of
the order.'
[4]
The ten day period referred to in r 49(1 )(c) expired on 11 November
2010, and accordingly, the respondent's request for reasons
is out of
time.
[5]
In any event, it is my view that my finding that the matter was
urgent is not appealable. Such finding was not a final determination
dispositive of the matter or concerning its merits. It was, rather, a
discretionary decision made by this court in the exercise
of its
inherent jurisdiction confirmed by s 173 of the Constitution to
regulate its own procedure. The time periods adopted in
urgent
matters concern not the merits of those matters, but the procedural
arrangements most appropriate to the matters. In
Commissioner,
SARS v Hawker Air Services (Pty) Ltd
[2006] ZASCA 51
;
2006
(4) SA 292
(SCA) at 299G-H, the court stated as follows:
'Urgency
is a reason that may justify deviation from the times and forms the
rules prescribe. It relates to form, not substance,
and is not a
prerequisite to a claim for substantive relief. Where an application
is brought on the basis of urgency, the rules
of court permit a court
(or a judge in chambers) to dispense with the forms and service
usually required, and to dispose of it
"as to it seems meet"
[Rule
6(12)(a)].
This, in effect, permits an urgent applicant, subject to the court's
control, to forge its own rules ..."
[6]
Section 173 of the Constitution provides that:
'The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.'
[7]
The
only qualification on the exercise of a s 173 power is that a court
must take into account the interests of justice. The exercise
of a s
173 power is thus not appealable.
[8]
I accordingly find that it is not necessary for me to deliver reasons
for the order which I made on 28 October 2010.
J
I CLOETE, AJ